With Congress inept on immigration reform and legislation, a court battle over the Fourteenth Amendment’s Birthright Citizenship provision would give a 6 to 3 Conservative Majority High Court the opportunity to do exactly what it is empowered to do, enact permanent law, unlike presidential executive orders.
Abraham Lincoln at Antietam During Civil War
(Original Caption) President Abraham Lincoln with General George B. McClellan at his headquarters at Antietam, October 3, 1862. From left: General George W. Morell, Colonel Alexander S. Webb, General McClellan, scout Adams, Dr. Jonathan Letterman, unidentified officer, President Lincoln, Colonel Henry Hunt, General Fitz, John Porter, unidentified officer.
Samiha Charles, CRDN
March 21, 2025
There are many who would argue that the current fight underway over Birthright Citizenship (one of many fights) between President Donald J. Trump, Democrat States, and advocate support groups favoring Birthright Citizenship, was foreseeable, or even inevitable. However, given the gravity of the issue, two pressing questions need to be answered: (a) How to prevent the destruction of the right to Birthright Citizenship, and (b) How to do so without a decisively conservative majority U.S. Supreme Court, rather than congress, implementing law as to the Birthright Citizenship provision of the Fourteenth Amendment of the United States Constitution. To understand this, Democrats and those favoring the right, must not act with reckless abandon as they did in first trying to prevent Mr. Trump from running for office, and then from being elected to office, in which in both instances they were woefully unsuccessful. Therefore, to understand how to successfully navigate this explosive issue, such that the U.S. does not end up with approximately 150,000 children born annually, without citizen status, and without the U.S. Supreme Court enacting laws that subject Birthright Citizenship to some manner of retroactive application, further disrupting innocent lives of millions, it is important to understand important aspects of the Fourteenth Amendment, and the right, now shrouded in controversy.
First, the Fourteenth Amendment of the United States Constitution, along with all its provisions, including the Birthright Citizenship provision, arose out of the United Sates’ Reconstructive Era, in which the U.S. Government occupied the South, the way it once occupied Iraq, for purposes of preventing Slavery and ensuring that Africans and their decedents, involuntarily brought to the United States., had equal rights. However, it is important to keep in mind that the Fourteenth Amendment did not give birth to the right to Birthright Citizenship. Rather, the Fourteenth Amendment made Birthright Citizenship an equal right. The United States and before it, the Thirteen [English] Colonies were home to European Immigrants, who through the years became citizens of the colonies, as did their children upon their both, unlike the Africans captured into the Thirteen Colonies and later the United States. Despite toiling and building much of the foundation of the Thirteen Colonies and later the U.S., even after hundreds of years Africans being involuntarily transported into the U.S., along with those who were then currently being transported into the U.S., unlike their European counterpart, were never citizens of the land, and the same was true of the children and decedents of those Africans. Therefore, the Civil War, along with the subsequent Reconstruction Amendments, sought to make both groups of people equal as it concerned Birthright Citizenship.
It truly is a remarkable story. However, it is not a story where those who support Birthright Citizenship should focus or begin. It may seem wise to begin there; after all, the Fourteenth Amendment enacted the concept, principle, and later the law of Equal Rights. However, that reasoning would be a deathtrap, unduly flawed by its reality, the most fundamental aspect of which is the fact that in many respects, the U.S. has never been successful in fully implementing the Fourteenth Amendment’s Equal Rights law, even now, nearly 157 years after it was enacted as one of “the Reconstruction Amendments.” Today, the Equal Rights law, which ironically is a pilar of the United States, and has come to globally symbolize what it means to be an American, is under heavy assault, some would argue, as much today, as it was during the Reconstruction Era nearly 157 years ago. This heavy assault seeks to removes from the annals of American History some of its most beautiful history such as Jackie Robinson and Branch Rickey’s quantum leap, making baseball a globally celebrated sport, irrespective of one’s race, color, or creed; or the story of the 332nd Fighter Group and 447th Bombardment Group of the United States Air Force, more popularly known as the Tuskegee Airmen, who served the U.S. honorably during World War II, such that today, race, color, or creed are nonissues to service.
The U.S. Government has struggled with its application of equal rights in the early days following the Civil War, and continues to struggle with such implementation, to this day, as we see in real time. Additionally, it is also important to understand that even though there have been those who have felt some way about Birthright Citizenship, it has never been the subject of a vigorous dispute as is now the case. Therefore, this is largely uncharted territory. Moreover, with 6 conservatives on the United States Supreme Court, naturally inclined to resort to strict constructionism (i.e., interpretation of a literal terminology), who believe heavily in something called “original intent” (i.e., what was the original legislative intent), those jurists could resort to an interpretation of the Fourteenth Amendment’s Birthright Citizenship provision that is substantially narrowed, with all manner of limitations, that strict constructionism deem are necessary to bring the application of the provision in-line with their interpretation of the original intent, of some 157 years ago.
That sort of a ruling would last despite who is president, until Congress implemented a law regarding the same, undoing the Supreme Court’s interpretation. As it stands now, Mr. Trump’s Executive Orders may be revoked by his successor. Therefore, those that support Birthright Citizenship, to have any viable chance of upholding the law as it is interpretated today, or prevent it from being too narrowly construed to be a right, and definitely not one that is retroactively applied, must do what lawmakers did in enacting the Reconstruction Amendment, look to the common law, before there was such a thing as the United States, and all that existed was Thirteen English Colonies.